Wise v. Armold Transfer & Storage Co., Inc.

• Decision Date: 31 July 1985
• Docket Number: No. 14778,14778
• Citation: 704 P.2d 352,109 Idaho 20
• Parties: Daniel WISE, Plaintiff-Appellant, v. ARMOLD TRANSFER & STORAGE COMPANY, INC., a corporation, and Terry Joe Moore, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 352

704 P.2d 352

109 Idaho 20

Daniel WISE, Plaintiff-Appellant, v. ARMOLD TRANSFER & STORAGE COMPANY, INC., a corporation, and Terry Joe Moore, Defendants-Respondents.

No. 14778.

Court of Appeals of Idaho.

July 31, 1985.

Edward J. Berrett of Merrill & Merrill, Pocatello and Rick E. Janov of Manion, Janov, Edgar, Devens & Fahey, Hoopeston, for plaintiff-appellant.

Jeremiah A. Quane and William A. McCurdy of Quane, Smith, Howard & Hull, Boise, for defendants-respondents.

SWANSTROM, Judge.

Daniel Wise appeals from a summary judgment entered in the district court in favor of Armold Transfer & Storage Company, Inc., a New Mexico corporation. Wise had been seriously injured in an accident in Idaho while riding in Armold's truck being driven by Terry Joe Moore. Wise brought this tort action to recover damages from Armold and the driver for personal injuries. The district court held that Wise was an employee of Armold when injured and that he had only the right to recover workmen's compensation benefits. On appeal Wise contends the district court erred in: (1) applying Idaho law to determine the legal relationship between the parties at the time of the accident; and (2) determining that Wise was an employee of Armold at the time of the accident and was then within the scope of that employment. We affirm.

The relevant undisputed facts are as follows. At the time of the accident Moore was employed as a truck driver for Armold. Armold owned and furnished the truck driven by Moore for the hauling of household furnishings under an arrangement with Mayflower Transit Company. Moore was paid by Armold on a percentage basis of the truck load. It was common practice for drivers to hire helpers from time to time to help load and unload the truck. In 1974 Moore hired Wise as a helper with the understanding that Wise would ride on the truck. Moore reported the presence of Wise as a helper riding on the truck to both Armold and Mayflower. Moore controlled how and when Wise was to do the work and had the right to discharge Wise anytime without penalty. Wise was paid $85 per week under this arrangement from Moore's percentage of the truck load and worked for approximately two months before leaving to work with Dalby Transfer and Storage, a company affiliated with Armold.

Wise came back to work as Moore's helper sometime in August or September of 1975. His manner of payment was changed to a hourly rate and he was paid--by Moore--only for the time actually spent loading or unloading. Moore again advised Armold that Wise was on the truck with him. Armold began carrying Wise on Armold's records as an employee for purposes of taxes and workmen's compensation. Moore kept track of Wise's hours and reported them to Armold. This was the prevailing arrangement when the accident occurred on the interestate highway in Minidoka County, Idaho, in November, 1975. Wise first brought suit against Armold in New Mexico in 1977 for benefits under that state's workmen's compensation act. That action was resisted by Armold. In November, 1977, Wise filed the present tort action in Idaho. So far as we know, the New Mexico proceeding is still pending, awaiting a final decision in this case. The propriety of filing this action in Idaho while another was pending has not been made an issue by the parties and we will not address it sua sponte.

In both Idaho and New Mexico, the exclusive remedy for an employee in an action against his employer on account of an injury or occupational disease is through workmens compensation. I.C. § 72-211, N.M.Stat.Ann. § 52-1-9. Wise brings this present suit on a common law tort basis, claiming he was not Armold's employee at the time of the accident. The material facts before the court were not in dispute, only the determination of the legal conclusions to be drawn from those facts.

Wise first asserts that the district court erred in applying Idaho statutory law to this case. He contends that New Mexico law should be applied to determine the legal relationship of the parties. It must first be determined whether the potentially applicable laws do in fact conflict, or whether there is merely a "false conflict." See Rungee v. Allied Van Lines, Inc., 92 Idaho 718, 449 P.2d 378 (1968); 16 Am.Jur.2d CONFLICTS OF LAWS § 106 (1979). Wise argues that there is a conflict because Idaho's workmen's compensation statute, I.C. § 72-204, specifically states that helpers of employees whether paid by the employer or employee, if employed with the knowledge of the employer, are employees. New Mexico's workmen's compensation statutes do not have a similar provision. Section 52-1-16 of N.M. Stat.Ann. defines a workman as

any person who has entered into the employment of or works under contract of service or apprenticeship, with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business.

The district court found that there was no conflict. It concluded that the workmen's compensation acts of the two states are "largely similar, and any differences have no bearing on the outcome of this case." He likewise found no significant differences between the case law in the two states so far as determining whether a person is an "employee" or an "independent contractor" and when an employee is within the scope of employment. We will examine these rulings under the case law of the two states.

Wise asserts that he was an independent contractor. The general test which establishes the relationship of employer-employee as opposed to an independent contractor is "the right to control and direct the activities of the employee, or the power to control the details of the work to be performed and to determine how it shall be done, and whether it shall stop or continue...." Pinson v. Minidoka Highway District, 61 Idaho 731, 737, 106 P.2d 1020, 1022 (1940); see also Brown v. Jerry's Welding and Construction Co., 104 Idaho 893, 665 P.2d 657 (1983); accord Jelso v. World Balloon Corp., 637 P.2d 846 (N.M.App.1981). This right of control encompasses the details, manner, or method of the work. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960). In contrast, an independent contractor is subject to control only as to the result or product of the work.

Both parties agree that Moore, rather than the owners of Armold, actually controlled the details of Wise's work due to the nature of the trucking business. Wise argues this made him at most, an employee of Moore, but not of Armold. Armold asserts that Moore had the authority to hire employees for Armold. The district court so found and that finding has not been challenged on appeal.

It has been held that "[t]he identity of the person who, in fact, directs the details of the work and gives the immediate instructions to the workmen is of comparatively small importance, the power of control referred to being the power to control the undertaking as a whole." Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9, 11 (1964) (citations omitted) (quoting Jones v. George F. Getty Oil Co., 92 F.2d 255, 263 (10th Cir.1937)). Therefore, when plaintiff was doing defendant's work and was under the control of defendant's field engineer, he was found to be an employee of defendant. Shipman v. Macco Corp., supra. Similarly, Idaho has recognized a well-established common law rule "that where one is requested by an employee to assist in doing such employee's work in the furtherance of the business of the master, and such assistant does such work with the knowledge and acquiescence of the employer, such assistant thereby becomes in effect an employee...." Larson v. Independent School Dist. No. 11J, 53 Idaho 49, 56, 22 P.2d 299, 301 (1933).

Applying these factors to the present case, we find Wise was an employee of Armold at the time of the accident. Moore, as an employee of Armold, hired Wise, instructed him on what to do and how and when to do it and determined the rate of pay. Wise was riding in the truck supplied by Armold, with the actual knowledge of Armold. Before the accident Armold had begun to put Wise on Armold's records as an employee for purposes of taxes and workmen's compensation as of September 1975. The president of Armold stated in her deposition that after discussions with the insurance company, the Internal Revenue Service and the labor boards, "if he [Moore] was going to have anybody on that van then we had to know about it, and we had to treat them as an employee." Wise had a duty to perform for Armold subject to Moore's right to control his work and Wise's right to receive compensation. We hold that as a matter of law, Wise was an employee of Armold, rather than an independent contractor, at the time of the accident.

Wise next contends that even if we hold that he was an employee, he was not within the scope of his employment at the...